An upcoming case in Kentucky reveals that Kentucky's spousal testimonial privilege is not in line with most state's spousal testimonial privileges in two regards. Deshon Marquese Ogburn is charged with murder, a second-degree persistent felony offender charge, and tampering with physical evidence in connection with the shooting death of Christopher Thomas Taylor. Taylor was the lover of Ogburn's wife, and Ogburn allegedly shot and killed him after discovering him in bed with his wife.

Now, one issue in the case is whether the wife's statements to police identifying her husband as the shooter when they first arrived at the scene of the crime will be admissible at Ogburn's trial. The Commonwealth Attorney contends that these statements are admissible as an exception to the rule against hearsay as excited utterances under Kentucky Rule of Evidence 803(2). Furthermore, in anticipation of the wife not testifying against Ogburn at trial, the Commonwealth Attorney has argued that the admission of her statements would not violate the Confrontation Clause because they were "made during the course of gathering information during an emergency." While I don't know enough of the facts of the case to be able to comment on this argument, it is obviously directed at satisfying the test set forth in Davis v. Washington, 547 U.S. 813 (2006), where the Supreme Court held that

"Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

But why wouldn't the wife testify? Well, according to an article of the case, Ogburn plans to use Kentucky Rule of Evidence 504(a), its spousal testimonial privilege, to prevent her from testifying against him. Under Rule 504(a), "[t]he spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage." Thus, if the wife didn't want to testify against Ogburn, she could refuse, and if Ogburn wanted to prevent his wife from testifying against her, he could prevent her from testifying; only if both spouses agreed that the wife would be allowed to testify could she render testimony under Rule 504(a).

So, how is Rule 504(a) in the minority? Well, according to the recently released 2nd edition of Fisher's "Evidence," most jurisdictions permit a spouse to refuse to testify against her defendant-spouse while a few jurisdictions find that control of the privilege lies with the defendant-spouse, who can decide whether his spouse will render testimony. Finally, according to the casebook, "[a] third, less common form of the spousal testimonial privilege bars spousal testimony against criminal defendants unless both spouses consent." Kentucky's spousal testimonial privilege thus falls into this third, smallest, category.

While Rule 504(a) thus in one sense makes it more difficult to receive the testimony of a spouse against a defendant-spouse than it is in most jurisdictions, the second way that Kentucky's privilege deviates from the spousal testimonial privilege in the majority of jurisdictions makes it easier to receive such testimony. Like most spousal testimonial privileges, Rule 504(a) has a crime-fraud exception, an exception when the spouses are adverse parties, and an exception when the defendant-spouse is charged with wrongful conduct against his spouse or their children.

Rule 504(a), however, also has three exceptions not contained in most spousal testimonial privileges. These are exceptions that apply

"[i]n any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of...[a]n individual residing in the household of either; or...[a] third person if the wrongful conduct is committed in the course of wrongful conduct against [the other spousal or their children]. The court may refuse to allow the privilege in any other proceeding if the interests of a minor child of either spouse may be adversely affected."

Thus, if the Ogburn and his wife were estranged and the victim were living with his wife, the privilege wouldn't apply. And if Ogburn's behavior could be construed as wrongful conduct against not only the victim, but also his wife, the privilege wouldn't apply, even if Ogburn were not charged with any crime against his wife. Finally, the privilege wouldn't apply if Ogburn and his wife had a minor child who would be adversely affected if the wife didn't testify. Now, my brief research into Kentucky case law did not uncover any cases where a court applied this last exception, but it seems to me that it could be applied in any case where a minor child is involved. To wit, if the wife's testimony would likely lead to Ogburn being convicted, wouldn't application of the privilege adversely affect their minor child because it would make it likely that the child's father, a probable murderer, would be set free and be able to visit the child and perhaps even have custody over him? I would certainly be interested to see how a Kentucky court might apply this last exception.